*

The Honorable William J. Haynes, Jr., United States District Judge

for the Middle District of Tennessee, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0039P (6th Cir.)

File Name: 04a0039p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRY L. PEVELER,

Defendant-Appellant.

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No. 02-5778

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 93-00014—Jennifer B. Coffman, District Judge.

Argued: October 24, 2003

Decided and Filed: February 6, 2004 

Before: DAUGHTREY and GILMAN, Circuit Judges;

HAYNES, District Judge.*

_________________

COUNSEL

ARGUED: Elizabeth S. Hughes, GESS, MATTINGLY &

ATCHISON, Lexington, Kentucky, for Appellant. Terry M.

2 United States v. Peveler No. 02-5778

Cushing, ASSISTANT UNITED STATES ATTORNEY,

Louisville, Kentucky, for Appellee. ON BRIEF:

Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON,

Lexington, Kentucky, for Appellant. Terry M. Cushing,

Candace G. Hill, ASSISTANT UNITED STATES

ATTORNEYS, Louisville, Kentucky, for Appellee. Terry L.

Peveler, Manchester, Kentucky, pro se.

_________________

OPINION

_________________

HAYNES, District Judge. Appellant Terry L. Peveler

appeals the district court's order denying his motion to modify

his sentence under 18 U.S.C. § 3582(c)(2). Peveler relies

upon the retroactivity of Amendment 599 to U.S.S.G. § 2K2.4

that bars “double counting” of firearm enhancements where,

as here, there is conviction under 18 U.S.C. § 924(c) arising

from the same underlying offenses. Although originally

indicted on 11 counts, Peveler subsequently entered a guilty

plea under the former Fed. R. Crim. P. 11(e)(1)(C) to a

superceding information charging five counts of

drug-trafficking in violation of 21 U.S.C. § 841(a)(1) and a

sixth count of carrying a firearm during and in relation to a

drug-trafficking crime in violation of 18 U.S.C. § 924(c).

Peveler contends that Amendment 599 prohibits the two-level

sentence enhancement in his plea agreement that the district

court applied to determine his original sentence. Therefore,

Peveler moves to modify his sentence by two levels. For the

reasons set forth below, we AFFIRM the district court's

judgment, but for different reasons.

A. Procedural History

On April 6, 1993 a federal grand jury in Owensboro,

Kentucky returned an 11-count indictment against Peveler

and three other co-defendants. Peveler was named in seven

of the 11 counts, with five of these counts charging him with
No. 02-5778 United States v. Peveler 3

1

In 2002, Fed. R. Crim. R. 11 was amended and the current version

of Rule 11(e) incorporates the provisions of Fed. R. Crim. P. 32(e). The

former Rule 11(e)(1)(C) is now Rule 11(c)(1)(C). Given the facts of this

case and our reliance on pre-2002 precedents, we will continue to refer to

Peveler’s plea agreement as a Rule 11(e)(1)(C) for ease of reference.

drug trafficking in violation of 21 U.S.C. § 841(a)(1). The

remaining two counts charged Peveler with violating

18 U.S.C. § 924(c) by using or carrying a firearm in relation

to drug trafficking crimes on November 12, 1992, and

December 18, 1992. Initially, Peveler pled not guilty to all

seven counts, but after the district court denied his motion to

suppress, he entered into a plea agreement with the

government.

The “Rule 11(e)(1)(C)”1 plea agreement required Peveler

to plead guilty to a six-count superseding information that

charged him with the same five drug-trafficking counts in the

original indictment, but with only one count of violating

§ 924(c) by using or carrying a firearm in relation to a drug

trafficking crime on January 24, 1993. In return, the

government agreed to dismiss the two § 924(c) firearm

charges and further agreed to recommend a prison sentence

and fine at the low end of the applicable guideline ranges.

The plea agreement contained an express provision that the

total offense level would be 30, based upon specific guideline

calculations in the plea agreement. Peveler entered his guilty

plea in September 1994, but preserved his right to appeal the

district court's denial of his motion to suppress. Peveler

received a 181-month prison sentence, with the five

drug-trafficking counts accounting for 121 of these months,

and the additional 60 months attributable to his § 924(c)

firearm conviction.

Peveler then appealed the denial of his motion to suppress.

We affirmed the district court's denial of Peveler's motion.

United States v. Peveler, 1995 U.S. App. LEXIS 36888, 1995

WL 620961 (6th Cir. Oct. 19, 1995) (unpublished table

decision). The Supreme Court denied Peveler's subsequent

4 United States v. Peveler No. 02-5778

petition for a writ of certiorari. Peveler v. United States, 516

U.S. 1137 (1996).

Peveler then filed a pro se petition under 28 U.S.C. § 2255

for relief from his sentence, alleging that he pled guilty to the

firearm count based upon his belief that he could be convicted

under § 924(c) for storing firearms in proximity to illegal

drugs. After his conviction, the Supreme Court in Bailey v.

United States, 516 U.S. 137 (1995), held that a conviction for

using a firearm in relation to a drug-trafficking crime can only

arise if the defendant “actively employed” the firearm. The

district court referred Peveler's petition to the magistrate

judge. The magistrate judge recommended that the district

court vacate Peveler's firearm conviction. This

recommendation was based on the government's concession

that Peveler's guilty plea to the firearm count was no longer

valid after Bailey. The government, however, withdrew its

concession shortly after Bousley v. United States, 523 U.S.

614 (1998), in which the Supreme Court held that to assert a

Bailey challenge successfully, a movant must show “cause

and prejudice” to avoid procedural default or demonstrate his

actual innocence on the § 924(c) charge and any other more

serious charges that were dismissed during plea bargaining.

After Bousley, the district court remanded the action to the

magistrate judge for a recommendation on the firearm

charges.

The magistrate judge conducted an evidentiary hearing, at

which the government conceded Peveler's actual innocence

of the firearm charge in the superseding information. The

hearing focused on whether Peveler had committed the other

firearm charges in the original indictment, that is, whether

Peveler used or carried a firearm in relation to

drug-trafficking crimes on November 12, 1992, and

December 18, 1992. After the hearing, the magistrate judge

recommended that Peveler's request for relief from his

conviction and sentence on the firearm count in the

superseding information be denied. The district court

overruled Peveler's objections, adopted the magistrate judge's
No. 02-5778 United States v. Peveler 5

recommendation and denied a certificate of appealability.

However, we granted a certificate of appealability, but

affirmed the district court's decision. 

On August 3, 2001, Peveler filed a motion to modify his

sentence pursuant to 18 U.S.C. § 3582(c). The district court

referred the motion to a magistrate judge, who recommended

denying Peveler's motion. The district judge adopted the

magistrate's finding and denied the motion. In essence, the

district court adopted the magistrate judge's conclusion that a

reduction was not warranted because the two-level

enhancement was not for Peveler's drug convictions, but for

his possession of a firearm on a different month and year from

the drug offenses. Peveler then appealed the district court's

decision and filed a pro se brief in this court. We appointed

counsel, who filed a brief on Peveler's behalf, to which the

government has responded.

B. Factual Background

In September 1992, the Kentucky State Police and the

police department in Livermore, Kentucky, began

investigating Peveler and his codefendants for suspected drug

trafficking. This investigation commenced after a

confidential source informed both law enforcement agencies

that Peveler was using and selling illegal drugs in Western

Kentucky.

About the time of the investigation of Peveler, Livermore

Police Chief Charles Cobb arrested Larry Blanford for

attempted theft of a motorcycle. Blanford agreed to serve as

a confidential informant and to purchase drugs from Peveler

in exchange for cash payments and the dismissal of his theft

charge.

Pursuant to this arrangement, Blanford informed Cobb and

Kentucky State Police Detective Charles Brown that he

purchased marijuana from Peveler on November 12, 1992,

and again on December 18, 1992, and that he saw Peveler

6 United States v. Peveler No. 02-5778

weigh and package various quantities of cocaine on

January 24, 1993. Blanford reported seeing firearms openly

displayed in the rooms of Peveler's trailer home where the

marijuana sales took place in 1992 and further stated that he

saw firearms in the closet of Peveler's bedroom where the

cocaine packaging occurred in 1993. Based on the

information provided by Blanford, warrants were issued to

arrest Peveler and to search his trailer. The search resulted in

the recovery of 1.5 pounds of cocaine, 12 pounds of

marijuana, and four firearms.

C. The Plea Agreement

Peveler eventually entered into a plea agreement that

required Peveler to plead guilty to a six-count superseding

information with the same five drug-trafficking counts

included in the original indictment, but with only one count

of violating § 924(c) by using or carrying a firearm in relation

to a drug trafficking crime on January 24, 1993. Essentially,

the only difference between the original indictment and the

superseding information was that the two § 924(c) firearm

charges on November 12, 1992 and December 18, 1992, were

dropped in exchange for the single § 924(c) count on

January 24, 1993. 

The plea agreement was under then Fed. R. Crim. P.

11(e)(1)(C) and expressly provided that the sentencing level

would be 30, but based upon certain findings to be made by

the Court under the guidelines. The plea agreement provides,

in pertinent part:

Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of the Federal

Rules of Criminal Procedure,

4. Defendant understands that the charge to which he

will plead guilty carries a combined maximum term

of imprisonment of 65 years, a combined maximum

fine of three million dollars, and a 4 year term of

supervised released. Defendant understands that an
No. 02-5778 United States v. Peveler 7

additional term of imprisonment may be ordered if

the terms of the supervised released are violated, as

explained in 18 U.S.C. § 3583. There is not a

mutual mistake here, but rather a retroactive

application of a guideline.

* * *

10. At the time of sentencing, the United States will

recommend a sentence of imprisonment at the low

end of the applicable Guideline Range, but not less

than any mandatory minimum term of imprisonment

required by law.

* * *

11. Both parties have independently reviewed the

Sentencing Guidelines applicable in this case, and in

the best judgment and belief, conclude as follows:

A. The Applicable Offense Level should be

determined as follows:

Base Offense Level 26 § 2D1.1(c) (9)

Organizer or leader +2 § 3B1.1(c)

Adjusted Based Offense level 28

Possession of Weapon +2 § 2D1.1(b) (2)

TOTAL OFFENSE LEVEL 30

B. The Criminal History of the Defendant shall be

determined upon completion of the presentence

investigation, pursuant to Fed. R. Crim. P. 32(c)(2).

12. If the Court refuses to accept this agreement and

impose sentence in accordance with its terms

according to the United States' motion pursuant to

Fed. R. Crim. P. 119(e)(1)(C), this Agreement will

become null and void and neither party shall be

bound thereto, and Defendant will be allowed to

withdraw the plea of guilty.

8 United States v. Peveler No. 02-5778

* * *

14. Defendant agrees that the disposition provided

within this Agreement is fair, taking into account all

aggravating and mitigating factors. Defendant states

that he has informed the United States Attorney's

Office and the Probation Officer, either directly or

through his attorney, of all mitigating factors.

Defendant will not oppose imposition of a sentence

incorporating the disposition provided for within

this Agreement, nor argue for any other sentence.

(Joint Appendix at 108-09, 112-113) (emphasis added). The

district court accepted the parties’ guideline calculations and

imposed the sentence of 181 months consistent with the plea

agreement.

During oral argument, Peveler conceded that he does not

want to set aside his plea agreement, given that to do so

would subject him to prosecutions on two additional § 924(c)

firearm charges. In any event, as discussed infra, this Court

would lack the authority to set aside the plea agreement under

§ 3582(c).

D. Analysis

This Court reviews a district court's decision to grant or

deny a motion to modify under 18 U.S.C. § 3582 for an abuse

of discretion. United States v. Ursery, 109 F.3d 1129, 1137

(6th Cir. 1997). Yet, to the extent that Peveler's “arguments

all rest on the legal interpretation of various [sentencing]

guidelines,” the district court's interpretation of the sentencing

guidelines presents a question of law, subject to de novo

review. United States v. Smith, 196 F.3d 676 (1999) (citing

United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994)).

The statutory authority for Peveler's sentence modification

request is 18 U.S.C. § 3582(c)(2), which provides as follows:
No. 02-5778 United States v. Peveler 9

The court may not modify a term of imprisonment once

it has been imposed except...in the case of a defendant

who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently

been lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of the

defendant... after considering the factors set forth in

section 3553(a)... if such a reduction is consistent with

applicable policy statements issued by the Sentencing

Commission.

(Emphasis added.)

18 U.S.C. § 3553(a) lists the following relevant factors to

be considered when ruling on a motion to modify:

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant; 

(2) the need for the sentence imposed–

(A) to reflect the seriousness of the offense, to promote

respect for the law, to provide just punishment for the

offense...

* * *

(5) any pertinent policy statement issued by the

Sentencing Commission...

In a policy statement, the United States Sentencing

Commission addressed the district court's exercise of its

discretion on a § 3582(c)(2) motion, stating:

In determining whether, and to what extent, a

reduction in the term of imprisonment is warranted for a

defendant eligible for consideration under 18 U.S.C.

§ 3582(c)(2), the court should consider the term of

imprisonment that it would have imposed had the

amendment(s) to the guidelines listed in subsection (c)

been in effect at the time the defendant was sentenced...

Application note 2 to U.S.S.G. § 1B1.10.

10 United States v. Peveler No. 02-5778

Peveler argues that he is entitled to reduction of his

sentence due to the Sentencing Commission's retroactive

application of Amendment 599 to the sentencing guidelines

set forth in revised § 1B1.10 of the U.S.S.G., as follows:

Weapon Enhancement. If a sentence under this

guideline is imposed in conjunction with a sentence for

an underlying offense, do not apply any specific offense

characteristic for possession, brandishing, use, or

discharge of an explosive or firearm when determining

the sentence for the underlying offense. A sentence

under this guideline accounts for any explosive or

weapon enhancement for the underlying offense of

conviction, including any such enhancement that would

apply based on conduct for which the defendant is

accountable under § 1B1.3 (Relevant Conduct). Do not

apply any weapon enhancement in the guideline for the

underlying offense, for example. If (A) a co-defendant,

as part of the jointly undertaken criminal activity,

possessed a firearm different from the one for which the

defendant was convicted under 18 U.S.C. § 924(c); or

(B) in an ongoing drug trafficking offense, the defendant

possessed a firearm other than the one for which the

defendant was convicted under 18 U.S.C. § 924(c).

However, if a defendant is convicted of two armed back

robberies, but is convicted under 18 U.S.C. § 924(c) in

connection with only one of the robberies, a weapon

enhancement would apply to the bank robbery which was

not the basis for the 18 U.S.C.§ 924(c) conviction.

(Emphasis added.)

Eighteen U.S.C. § 3582 (c)(2) “empowers the District

Court to modify the prisoner's sentence that would otherwise

be final.” United States v. Williams, 182 F.3d 919, 1999 WL

397945, **4 (6th Cir. 1999). Because Amendment 599 is

given retroactive effect, a defendant may seek relief under

§ 3582(c)(2). United States v. Diaz, 248 F.3d 1065, 1107-08

(11th Cir.2001); United States v. Aquino, 242 F.3d 859, 865
No. 02-5778 United States v. Peveler 11

(9th Cir.2001). Yet, a district court “has the discretion to deny

a § 3582(c)(2) motion, even if the retroactive amendment has

lowered the guideline range.” Usery, 109 F.3d at, 1137,

Accord, United States v. Wesley, 221 F.3d 1337, 2001 WL

799783, **2 (6th Cir. June 14, 2000). 

Generally, “[o]nce the district court has accepted a plea

agreement, [this Court has] traditionally regarded the

agreement as a type of contract, and...[has] analyzed the

respective obligations of the prosecution and the defendant

under general principles of contract law.” United States v.

Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citing United

States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990)). “A

guilty plea, however, involves the waiver of at least three

constitutional rights by a defendant...[and] [t]herefore, the

analogy of a plea agreement to a traditional contract is not

complete or precise, and the application of ordinary contract

law principles to a plea agreement is not always appropriate.”

Id., citing United States v. Olesen, 920 F.2d 538, 541 (8th Cir.

1990). 

In United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990),

the Eleventh Circuit noted the possibility of reformation of a

Rule 11 plea agreement upon a showing of mutual mistake:

Reformation of a written agreement is warranted only

when the evidence demonstrates that the parties' mutual

mistake resulted in a written document which does not

accurately reflect the terms of their agreement.

Consequently, reformation is generally, without more,

not an available remedywhere the evidence demonstrates

mistake or change of mind of only one of the contracting

parties.

Id. at 1472 (citations omitted). In dicta, the First Circuit

suggested that modification of a plea agreement under a Rule

11(e)(1)(C) may be justified upon a showing of a mutual

mistake United States v. Teeter, 257 F.3d 14, 28 n.12 (1st Cir.

2001).

12 United States v. Peveler No. 02-5778

Yet, a rule of criminal procedure can limit a court's

authority. United States v. Robinson, 361 U.S. 220, 223,

229-30 (1960) “([T]he court may not enlarge the period for

taking any action under rules 33, 34, and 35, except as

otherwise provided in those rules).” Here, Rule 11 recognizes

three types of plea agreements Fed. R. Crim. P. 11(e)(1)(A)

through (C). Peveler’s plea agreement is under former Rule

11(e)(1)(C) which expressly limits the district court's

authority to modify the agreement. Accordingly, the

threshold issue here is whether the district court possessed the

authority to modify parties' agreed sentence that was imposed

under a Rule 11(e)(1)(C) plea agreement. 

 At the time of Peveler's 1994 plea agreement, former Rule

11(e)(1)(C) provided only that the parties “agree that a

specific sentence is the appropriate disposition of the case.”

A Rule 11(e)(1)(C) plea can also include “the language in the

plea agreement whereby the parties agreed that ‘any sentence

of incarceration shall not exceed the midpoint of the

sentencing guideline range that the court finds to be

applicable.’ This language has been held to be the equivalent

of a sentencing recommendation under Fed. R.Crim. P.

11(e)(1)(C) that is binding on a district court.” United States

v. Benjamin, 188 F.3d 509, 199WL685924 * 2 (6th Cir.

August 26, 1999). 

Even under the pre-1999 version of former Rule

11(e)(1)(C), we held that “[o]nce the court unqualifiedly

accepts the agreement it too is bound by the bargain.” United

States v Holman, 728 F.2d 809, 813 (6th Cir. 1984) (citations

omitted). Prior to the 1999 amendments to Rule 11(e), in

Fields v. United States, 963 F.2d 105 (6th Cir. 1992), a

defendant argued that the district court's acceptance of a Rule

11(e)(1)(C) plea agreement bound the district court to accept

the sentence in his Rule 11(e)(1)(C) agreement. We disagreed

and held that “[a] sentencing judge could no longer be forced

to abide by an agreed to sentence where that sentence did not

conform to the Guidelines, as that would eviscerate their

purpose.” Id. at 108, citing United States v. Kemper, 908
No. 02-5778 United States v. Peveler 13

2More recent decisions in other circuits question Fields, citing the

1999 amendments to Rule 11 and U.S.S.G. Ch.1 pt.A4(c) and Ch.6,pt.B,

introductory cmt. and U.S.S.G. § 6B1.2, and concluding that the

guidelines and policy guides do not preclude a district court from

imposing a sentence outside the guidelines under a Rule 11(e)(1)(C) plea

agreement. United States v. Goodall, 236 F.3d 700, 704-06 (D.C. Cir.

2001), and authorities cited therein.

F.2d 33 (6th Cir. 1990). Fields2 required the district courts to

consider a Rule 11(e)(1)(C) plea agreement in conjunction

with the Sentencing Guidelines and, under Fields, the district

court retained the authority to reserve judgment on acceptance

of the plea agreement:

In Kemper this court recognized that Holman, which

was decided before the Sentencing Guidelines, had been

overruled by “the 1987 amendments to the Federal Rules

of Criminal Procedure and the implementation of the ...

Guidelines.” Id. at 35. A sentencing judge could no

longer be forced to abide by an agreed to sentence where

that sentence did not conform to the Guidelines, as that

would eviscerate their purpose.

The Kemper court explained that if a plea agreement

has been accepted by the court before the presentence

report has been conducted, Guidelines § 6B1.1(c)

describes the proper procedure:

The court shall defer it decision to accept or reject any

nonbinding recommendation pursuant to Rule

11(c)(1)(B) and the court's decision to accept or reject

any plea agreement pursuant to Rules 11(e)(1)(A) and

11(e)(1)(C) until there has been an opportunity to

consider the presentence report.

Guideline § 6B1.1 as interpreted by Kemper, makes

contingent upon its review of the presentence report.

For, “only if the court is satisfied ... that the

contemplated sentence is within the guidelines” can it

14 United States v. Peveler No. 02-5778

accept an agreement requiring imposition of a specific

sentence. Kemper, 908 F.2d at 36-37.

Upon review of the presentence report, if the

sentencing court determines that there was an error in the

calculating the agreed-upon sentence, it must reject the

plea. Id.; U.S.S.G. § 6B1.3. The court must then “afford

the defendant an opportunity to withdraw the defendant's

guilty plea.” U.S.S.G. § 6B1.3.

Id. at 108-09.

With the 1999 amendments to Rule 11(e)(1)(C), the current

version of former Rule 11(e)(1)(C) expressly limits a district

court's authority to alter or modify any sentence imposed

under such an agreement:

(e) Plea Agreement Procedure.

(1) In General. An attorney for the government and

the defendant's attorney, or the defendant when

proceeding pro se, may discuss and reach a plea

agreement. The court must not participate in these

discussions. If the defendant pleads guilty or nolo

contendere to either a charged offense or a lesser or

related offense, the plea agreement may specify that an

attorney for the government will:

* * *

(C) agree that a specific sentence or sentencing range

is the appropriate disposition of the case, or that a

particular provision of the Sentencing Guidelines, or

policy statement, or sentencing factor does or does not

apply (such a recommendation or request binds the

court once the court accepts the plea agreement).

(Emphasis added.) The underscored language was added in

the 1999 amendments to Rule 11.
No. 02-5778 United States v. Peveler 15

Albeit in unpublished decisions, we have held that in light

of the 1999 amendments, upon “accepting the [Rule

11(e)(1)(C)] agreement, the district court bound itself to the

government's end of the guideline range. If the district court

did not agree with the government’s binding sentencing

recommendation, it was free to reject the agreement. Once

the district court chose to accept the agreement, however, the

court was required to follow its provisions.” United States v.

Taylor, 14 Fed.Appx. 546, 552, 2001 WL 814924 * 6 (6th

Cir. 2001). 

 In another unpublished decision concerning a Rule

11(e)(1)(C) plea agreement, we held that “once a district court

accepts a plea agreement where parties agreed on “a specific

sentence or sentencing range,” the district court is bound by

the parties’ plea agreement” and “cannot impose a sentence

greater or less severe than what is in the plea agreement[]”

unless “the terms of the plea agreement are equivocal.”

United States v. Debreczeny, 69 Fed. Appx. 702, 705,

2003WL21580433 * 3 (6th Cir 2003). In the latter instance,

“the district court has discretion to interpret its terms.” Id.

We follow and adopt the rationale of these unpublished

decisions.

 Here, at the time of sentencing, the district court applied

the parties’ calculations of the relevant guidelines to Peveler’s

plea agreement. Yet, this Court has not addressed whether a

district court has the authority to modify of a sentence under

a Rule 11(e)(1)(C) plea agreement based upon a retroactive

amendment to a guideline that was utilized to determine the

defendant's sentence.

The Seventh and Tenth Circuits have held that retroactive

amendments to the sentencing guidelines provide legally

insufficient basis on which to modify a sentence under a Rule

11(e)(1)(C) plea agreement. In United States v. Trujeque,

100 F.3d 869 (10th Cir. 1996), the Tenth Circuit observed

that a district court lacked jurisdiction to consider a motion to

modify a sentence under § 3582(c)(2), based upon the

16 United States v. Peveler No. 02-5778

retroactive Amendment 488 to U.S.S.G. § 2D1.1(a), where

the sentence was based upon a Rule 11(e)(1)(C) plea

agreement:

The government is correct in its assertion that federal

courts lack jurisdiction to review a Rule 11(e)(1)(C)

sentence where a prisoner claims that his Rule

11(e)(1)(C) sentence is greater than the sentence range

specified in the applicable guidelines. See 18 U.S.C.

§ 3742(C)(1); United States v. Denogean, 79 F.3d 1010,

1013-14 (10th Cir. 1996), cert. denied, 519 U.S. 856,

1117 S.Ct. 154, 136 L.Ed. 2d 99 (1996); United States v.

Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994).

However, this is not a direct appeal of Mr. Trujeque's

sentence, nor is it a collateral attack under 28 U.S.C.

§ 2255. Rather, Mr. Trueque has filed motion under 18

U.S.C. § 3582 (c)(2). And the viability of his motion

depends entirely upon that statute. Our appellate

jurisdiction over final decision extends as far as to

consider the district court's denial of Mr. Trujeque's §

3582 (c)(2) motion.

Id. at 870-71 (emphasis added). The Tenth Circuit then ruled

that the defendant's sentence was not actually calculated

under the guidelines, but was determined by the Rule

11(e)(1)(C) plea agreement. Id. at 871. Thus, this retroactive

amendment could not have affected the original sentence, and

the Tenth Circuit directed a dismissal of the motion to

modify. Id. Similarly, Peveler was sentenced pursuant to a

Rule 11(e(1)(C) plea agreement that binds both the parties

and the court. The fact that the parties in this case specified

an offense level under the sentencing guidelines rather than a

fixed period of imprisonment like the parties in Trujeque is a

distinction without a difference in terms of the court lacking

the power to amend the plea agreement. 

In United States v. Hemminger, 114 F.3d 1192, 1997 WL

235838 (7th Cir. May 2, 1997), the Seventh Circuit affirmed

the denial of a motion to modify under § 3582(c)(2) based
No. 02-5778 United States v. Peveler 17

upon a retroactive amendment to the relevant sentencing

guideline for the defendant's sentence. There, the Rule

11(e)(1)(C) plea agreement expressly stated that the agreed

sentence was not premised on the Court's or probation

officer's calculation of the guidelines. The Seventh Circuit

ruled: 

After accepting the agreement, the court "is not free to

revisit the plea agreement simply because, for whatever

reason, the defendant later comes back to the court for

resentencing." United States v. Ritsema, 89 F.3d, 399

(7th Cir. 1996). See also United States v. Barnes, 83

F.3d 934, 938 (7th Cir. 1996). The sentence, under a

Rule 11(e)(1)(C) plea rests on the parties' agreement, not

on the calculation under the Sentencing Guidelines.

Of course, a defendant is entitled to contest a plea

under Rule 11(e)(1)(C) on the same grounds that any

other plea may be challenged--that it was involuntary,

that is was the result of ineffective assistance of counsel,

that the indictment does not state an offense, and so on.

But Hemminger does not want to withdraw his plea and

go to trial; he does not contend that the plea is infirm on

any legal or factual ground; instead he wants to keep the

benefits of the plea while receiving a lower sentence.

That possibility is one he bargained away in 1990.

Having received the benefits of his agreement,

Hemminger must accept the portions favorable of the

prosecutor.

Id. at * 1. Himminger differs only in that Peveler's plea

agreement provided that the district court would determine

what the guideline calculation "should be." 

18 United States v. Peveler No. 02-5778

3

There is authority to support Peveler’s contention that Amendment

599 precludes an enhancement above the guideline calculation where a

Section 924(c) conviction is among the related conduct leading to the

calculation of the guidelines. See United States v. Aquino, 242 F.3d 859,

863-66 (9th Cir. 2001); United States v. Wright, 7 Fed. Appx. 296, 2001

WL 420495 (4th Cir. 2001). In a word, the issue concerns the

enhancement for related conduct, not whether the offenses occurred on

different dates.

4

This conclusion should not be construed as a blanket bar to all such

motions for relief. Fed. R. Crim. P. 35(b) has been deemed a potential

basis for relief in an “exceptional case,” United States v. Mukia, 26 F.3d

953, 955 (9th Cir. 1994). The First Circuit in dicta noted a “rare case”

exception to allow modification “to avoid a miscarriage of justice or to

correct a mutual mistake.” Teeter, 257 F.3d at 28, n.12. We do not

consider either of these potential exceptions here. There is not a mutual

mistake here, but rather a retroactive application of a guideline. We note,

however, that with the two-level deduction sought, Peveler’s actual

sentence is within the revised sentencing guideline range although the

sentence is not at the low end of the revised guideline range as provided

in the plea agreement. Peveler does not seek to set aside his plea

agreement.

Assuming that Peveler is correct in his interpretation of

Amendment 599 as applied to his sentence3, we defer to the

express language in the 1999 amendments to the former Rule

11(e)(1)(C) and our unpublished decisions on that Rule.4

Thus, absent an agreement of the parties, the plain language

of the current version of Rule 11(e)(1)(C), now Rule

11(c)(1)(C), generally precludes the district court from

altering the parties' agreed sentence under 18 U.S.C.

§ 3582(C). This conclusion applies despite the retroactivity

of a subsequent amendment to a relevant guideline utilized to

determine the defendant's sentence. 

For these reasons, we AFFIRM the district court's order.